From the Supreme Court of Mauritius
The National Identity Card Act 1985 (the 1985 Act) of Mauritius provide for adult citizens of Mauritius to carry identity cards which bear their names and signatures. Also the government proposed to introduce a new smart identity card, which incorporates on a chip the citizen’s fingerprints and other biometric information relating to his or her external characteristics. The National Identity Card (Miscellaneous Provisions) Act 2013 (the 2013 Act) is the legislative vehicle which was enacted for this scheme, which it effected by amending the 1985 Act.
The appellant, a citizen of the Republic of Mauritius challenged the constitutionality of the 2013 Act by seeking redress under section 17 of the Constitution, which allowed a person to apply to the Supreme Court for redress if he alleged that any of sections 3 to 16 of the Constitution, which set out the individual’s fundamental rights and freedoms has been, is being or is likely to be contravened in relation to him.
The appellant challenged the constitutionality of (a) the obligation to provide fingerprints and other biometric information under section 4, (b) the storage of that material on the identity card under section 5, (c) the compulsory production of an identity card to a policeman under section 7(1A) in response to a request under section 7(1)(b), and (d) the gravity of the potential penalties under section 9(3) for non-compliance. He claimed that the implementation of the new biometric identity card was in breach of the Constitutional safeguards coupled with article 22 of the Civil Code (which provided that everyone has the right to respect for his private life and empowers courts with competent jurisdiction to prevent or end a violation of privacy). He also alleged that the collection and permanent storage of personal biometric data, including fingerprints, on the identity card were in breach of those sections of the Constitution and that article of the Civil Code.
The Supreme Court of Mauritius held that the provisions of the 1985 Act (as amended) which enforced the compulsory taking and recording of fingerprints of a citizen disclosed an interference with the appellant’s rights guaranteed under section 9(1) of the Constitution. But the Court rejected the submissions that the other provisions of the Constitution and the article of the Civil Code had been breached. The Supreme Court held that the provisions of the 2013 Act which provided for the taking and recording of fingerprints for the purposes of a national identity card were a permissible derogation under section 9(2) as the creation of the card was in the interests of public order and it had not been shown that the provisions were not reasonably justifiable in a democratic society. But the Supreme Court held that the storage and retention of the fingerprints were not reasonably justifiable in a democratic society under section 9(2). It held that the storage of the data was not sufficiently secure because the safeguards of the Data Protection Act were not sufficient and the storage of the data was not subject to judicial scrutiny and control.
The Judicial Committee of the Privy Council observed that the Constitution is given a generous and purposive interpretation and in particular the provisions that enshrine fundamental rights should receive a generous and not literalist interpretation: Olivier v Buttigieg  1 AC 115; Minister of Home Affairs v Fisher  AC 319; Ong Ah Chuan v Public Prosecutor  AC 648. The appellant submitted that the creation of a reliable identity card system did not justify the interference with his fundamental rights as such obligation to provide his fingerprints interfered with his right to be presumed innocent and also that an innocuous failure to comply with section 4(2)(c) could give rise to draconian penalties under section 9(3).
The Judicial Committee of the Privy Council observed that the requirement to provide fingerprints for an identity card did not give rise to any inference of criminality as it was a requirement imposed on all adult citizens. Even though if circumstances arose in which a police officer was empowered to require the appellant to produce his identity card and the government had issued card readers, the authorities would have access to his fingerprint minutiae which they could use for the purposes of identification in a criminal investigation, yet it did not alter the presumption of innocence. The appeal was thus dismissed.